Court File and Parties

COURT FILE NOS.: CR-14-01122/CR-14-01265 DATE: 20170515 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: JOHN JANSEN AND BRITANEY HALL Applicants – and – HER MAJESTY THE QUEEN Respondent

Counsel: Daniel Brown, Counsel for John Jansen Christian Angelini, Counsel for Britaney Hall Kellie Hutchinson and Phyllis Castiglione, for the Respondent

HEARD: January 9-11, 2017

REASONS FOR RULING ON SECTION 11(B) APPLICATION

SOSNA J.

Overview

[1] The Applicant, John Jansen, is jointly charged with Mahyar Dadollahi-Sarab for the first degree murder of Ronidy Roseborough and the attempted murder of Richard Palmer. The Applicant, Britaney Hall, is charged with being an accessory after the fact to the murder of Roseborough.

[2] Jansen and Hall were arrested on February 19, 2014. Dadollahi-Sarab was arrested on July 15, 2015. The joint trial for all three accused is anticipated to conclude on May 26, 2017.

[3] The time between their charges to the anticipated end of trial is 39 months and 13 days. Relying on R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, Jansen and Hall seek a stay of proceedings. They submit the delay infringes their right to be tried within a reasonable time, a right guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms.

[4] Also citing Jordan, the Crown submits that any impugned delay in excess of 30 months, although presumptively unreasonable, is justified on the facts in this case. The Crown argues that the applications be dismissed.

[5] After the hearing, I orally dismissed both applications with reasons to follow. The following are my reasons.

Facts

[6] Jansen and Palmer had known each other for over 20 years. There had been bad blood between them for a number of years.

[7] On February 12, 2014, while arguing with Palmer on the phone, Jansen advised Palmer that he would attend at Palmer’s apartment. After the call, Palmer went down to the parking lot of his building, armed with a small baseball bat. Roseborough followed Palmer shortly thereafter. Jansen arrived in a dark SUV with at least two other males. He was armed with a small baseball bat.

[8] A physical confrontation took place involving the Jansen and Palmer. During the fight, Roseborough and an unknown male (alleged to be Dadollahi-Sarab) exited the SUV and became involved in the fight.

[9] During the fight, both Palmer and Roseborough were stabbed a number of times. Palmer sustained serious injuries but survived; Roseborough died as result of his injuries. Following the stabbings, Jansen and Dadollahi-Sarab fled the scene in the SUV.

Jansen and Dadollahi-Sarab’s arrests

[10] Jansen was arrested on February 19, 2014 and charged with first degree murder and attempted murder. He has remained in custody since.

[11] The investigation into the unknown male’s identity continued after Jansen’s arrest. Dadollahi-Sarab soon became a person of interest. Police investigation culminated in Dadollahi-Sarab’s arrest on July 15, 2015. He was also charged with first degree murder and attempted murder. He has remained in custody since.

Hall’s arrest

[12] Hall, believed to be Jansen’s girlfriend, provided the police an audiotaped interview on February 15, 2014. She stated she had not seen or talked to Jansen since before the incident. She advised the police she would let them know if she heard from Jansen.

[13] On February 19, 2014, two police officers saw Hall on a public street and spoke to her. Amongst other things, Hall advised them that she was aware that Jansen was wanted by the police, again that she had not seen him since before the incident, that Jansen had a key to her apartment, and she did not think the Jansen would be in the apartment.

[14] The police advised Hall that her apartment was a place of interest, as Jansen could be hiding there. Hall expressed concerns about possibly being charged with an offense and stated that she had a feeling that Jansen could be in her apartment.

[15] Hall attended her apartment and advised the police that Jansen was there. Jansen was ordered outside and arrested. Hall was charged with accessory after the fact to murder on February 19, 2014. On consent, on March 17, 2014, Hall was released on bail.

The Jordan Framework

[16] On July 8, 2016, the Supreme Court of Canada, in Jordan, directed the courts to apply a new framework when determining whether the right of an accused to be tried within a reasonable time, as set out in s. 11(b) of the Charter, had been breached. The court established ceilings beyond which delay is presumptively unreasonable. For cases tried in the Superior Court of Justice, that ceiling is 30 months. The 30-month period begins from when an accused is charged with an offense and ends with the actual or anticipated end of the trial: Jordan, at paras. 46-47.

[17] The framework is as follows:

1. Calculate the total delay (i.e., the total number of months between the laying of the charge and the actual or anticipated end of trial).

2. Deduct defence delay from the total delay to produce a net delay. Defence delay is delay caused by the defence or delay by defence explicitly or implicitly waived by the defence. Waivers must be clear and unequivocal. The Court observed “defence should not be allowed to benefit from its own delay causing conduct”: at para. 60. The accused must fully know the right being waived and the effect that waiver will have on those rights. Defence actions legitimately taken to respond to the charges, however, do not constitute defence delay: at para. 66.

3. Where the net delay exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances that led to the delay. If the Crown fails to rebut the presumption of unreasonable delay, court must order a stay of proceedings. If the net delay is below the presumptive ceiling, the burden shifts to the defence to demonstrate that the delay was nonetheless unreasonable: Jordan, at paras. 47-48, 60-61, 66 and 68.

4. For cases that exceed the presumptive ceiling but were in the system before Jordan was released, the Supreme Court of Canada directed that a “transitional exceptional circumstance will apply when the Crown satisfies the Court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed”: at para. 96.

Analysis of Jansen’s Application

Overview of the procedural history for Jansen

[18] Jansen was charged and arrested on February 19, 2014. Evidence in a joint preliminary hearing involving Jansen and Hall was heard on June 1-4, 8-11, 15-18, 22-25, 29-30, September 14, 15, 17, 18 and November 3-5, 2015—a total of 27 days.

[19] Jansen was committed to stand trial on first degree murder and attempted murder on December 2, 2015. On December 22, 2015, he served a notice of application to quash the orders of committal.

[20] On December 8, 2015, the Crown made a request to the Attorney General’s Office to proceed by direct indictment against Dadollahi-Sarab to join his charges with Jansen’s.

[21] The direct indictment joining Dadollahi-Sarab was directed on May 9, 2016. An information joining Dadollahi-Sarab and Jansen was before the Superior Court of Justice on May 11, 2016.

[22] In a judicial pre-trial on June 13, 2016, Jansen abandoned his certiorari application.

[23] On July 21, 2016, pre-trial motions were scheduled for two weeks starting March 20, 2017. A seven-week trial by jury was scheduled to commence April 10, 2017.

Total delay

[24] The Crown and Jansen’s counsel agree that the total delay is 39 months and 13 days. This exceeds the presumptive ceiling of 30 months.

Is there delay attributable to Jansen?

Joining Jansen and Hall’s preliminary hearings

[25] Jansen denies any defence delay.

[26] On February 1, 2015, Hall’s counsel advised the Crown that Hall’s instructions had changed from “murder” not being an issue for her preliminary hearing to it being a live issue for committal on the charge of accessory after the fact to murder.

[27] Since the Crown would be calling the same witnesses on the issue of “murder” in both Jansen’s and Hall’s preliminary hearings, on April 17, 2015, the Crown emailed both defence counsel to propose vacating Hall’s preliminary hearing date on May 4, 2015 and joining her charge to Jansen’s preliminary hearing on June 1, 2015. To accommodate the dual preliminary hearing, additional dates in September and November were added.

[28] On June 30, 2015, the Crown and defence counsel adjourned the joint preliminary hearing on consent to September 19, 2015. Their correspondence can be located in the respondent’s application record, tab 3, at pp. 51-52:

The Crown: The trial coordinator can make the week of September 14th happen, but she need to know fast. So if we can keep all the dates in June (keeping in mind we are not sitting on Fridays), then we can make this joint prelim happen. (This is assuming that Jansen is waving 11(b) to September 18th and agreeable to putting the two matters together for prelim). [emphasis in original] Are we good???

Jansen’s counsel: Good for me.

[29] Jansen’s counsel thereby explicitly waived the 2.5-month delay between June 30, 2015 to September 18, 2015.

[30] Jansen’s counsel submits the waiver was uninformed and invalid, because the Crown possessed and purposely withheld material information regarding Dadollahi-Sarab’s investigation at the time of the waiver. I disagree for the following reasons.

[31] The Crown and defence counsel agreed that trial efficiency would be better served by holding one preliminary hearing, as the same witnesses would be called on the issue of “murder.”

[32] When the agreement was reached on April 17, 2015, Jansen’s counsel was aware as early as Jansen’s first appearance in bail court on February 20, 2014 that there was an ongoing investigation of a third party suspect. Jansen’s counsel did not provide authorities to support his contention that the Crown is obligated to disclose the status of any investigation, including the investigation in the present matter. Such disclosure at a minimum would jeopardize, if not imperil, the investigation.

[33] I therefore find defence counsel’s unawareness of the specific details and or status of the Dadollahi-Sarab investigation to be irrelevant to the unequivocal and express waiver of Jansen’s s. 11 (b) rights for the 2.5 period from June 30 to September 18, 2015. At this juncture, the period of delay is reduced to 37 months.

Preferring an indictment for Dadollahi-Sarab

[34] Jansen’s counsel argues Jansen was prepared to set the earliest trial dates available. He argues the Crown caused a 10-month delay when it exercised its discretion to prefer an indictment and charge Dadollahi-Sarab and Jansen jointly with first-degree murder and attempted murder. Counsel argues the Crown’s tactical decision ignored Jansen’s s. 11 (b) rights; Jansen has remained in pre-trial detention for over three years.

[35] Jansen’s counsel contends the Crown made no effort to seek approval from the Attorney General for a preferred indictment until December 8, 2015, roughly five months after Dadollahi-Sarab’s arrest. Counsel submits this five-month delay is compounded by the five months (December 8, 2015 to May 9, 2016) the Attorney General took to approve the preferred indictment. Counsel submits that as a result, the Superior Court was not able to schedule pre-trial motions and trial dates until July 21, 2016.

[36] Whether Crown ought to have sought approval to proceed by direct indictment immediately after Dadollahi-Sarab’s arrest on July 15, 2015 and failed to do so for five months is a red herring as to whether the delay in Jansen’s case is unreasonable. Whether the Crown caused or waived any delays is not a consideration under the new Jordan framework. That being said, there is a presumption that accused alleged to have been working in concert should be tried jointly. Joint trials satisfy a number of interests, including but not limited to: the truth seeking role of the courts, consistent verdicts, and the public’s interest in minimizing expenses: R. v. Sarrazin, at para. 59.

[37] Further, when two accused enter the system at different points in time, the Crown must take measures to minimize the delay to the accused who entered at an earlier point in time. One such tool is to prefer one or more indictments under s. 577 of the Criminal Code, R.S.C. 1985, c. C-46 and have the parties tried jointly.

[38] When Dadollahi-Sarab was arrested on July 15, 2015, Jansen’s preliminary hearing had not been completed and had been adjourned on consent to resume in September 2015. The preliminary hearing was highly contested. The Crown called 32 witnesses over 27 days. Evidence and submissions were finalized on November 5, 2015. The preliminary hearing justice adjourned the matter to December 2, 2015 at which time Jansen was committed to stand trial on first degree murder and attempted murder. On December 8, 2015, the Crown sought approval for a preferred indictment against Dadollahi-Sarab.

[39] The preliminary hearing itself took five months to complete. Any delay in applying for approval from the Attorney General for a direct indictment is subsumed by the five months required to finalize the preliminary hearing.

Jansen’s certiorari application

[40] After both the Crown and defence had appeared by error on January 27, 2016 for the first Superior Court pre-trial, the matter was adjourned to February 10, 2016. At that pre-trial, the Court was advised that Jansen had filed a notice of certiorari application on December 22, 2015. Jansen’s counsel advised he was ready to proceed with a judicial pre-trial without knowing the status of legal aid funding for the certiorari application. The Crown also advised the court that on December 8, 2015, it had requested a direct indictment to join Dadollahi-Sarab’s and Jansen’s charges. In adjourning the February 10, 2016 pre-trial to February 25, 2016, Fuerst J. concluded with the following comments:

So, I’ve endorsed that the judicial pre-trial was commenced today. Crown counsel is waiting for an answer from the Regional Director as to whether there will be a direct indictment of a third individual. This obviously impacts on the ability of counsel and the court to complete the judicial pretrial and set a realistic trial date. I’ve asked Crown counsel to be in a position to provide the necessary information on the next date, adjourned to February 25, 2016, at 2:15 p.m. to continue the judicial pre-trial. So, it’s my wish that we be in a position to move ahead on that date: Jansen’s application record, tab 21, at p. 3, lines 8-20.

[41] At the February 25, 2016 judicial pre-trial, the Crown still had no answer from the Regional Director regarding approval for a direct indictment. The Court was concerned about the lack of response and ordered that a representative from the Ministry of Attorney General attend on the March 2, 2016 return date and explain the delay.

[42] On March 2, 2016, Paul Tait, a senior Crown, attended and advised that the request was made for a direct indictment on December 8, 2015 and forwarded to the Director of Crown Operations by January 8, 2017 for consideration. Thereafter, during the weeks of January 15, 22, 29, no review was conducted, because the Director’s father died, and the Director experienced health issues as result of the untimely death.

[43] Tait further advised that as of February 18, 2016, the request was in the hands of the Attorney General’s department and that a rigorous review of six to eight weeks was necessary to obtain an answer from the Ministry. The pre-trial was adjourned until March 23, 2016 for a status report.

[44] At the March 23, 2016 pre-trial, no response had been provided regarding the request for the direct indictment. The court was also advised that legal aid had refused funding for the certiorari application. Counsel advised that it would appeal the legal aid decision and wanted to reserve the right to set the date for certiorari hearing. Defence counsel pressed to set trial dates in January 2017. The court was not prepared to set trial dates without resolving the direct indictment question, the certiorari application and for an additional reason which the court addressed as follows:

There may be a third counsel involved. I was told it may well be Mr. Struthers. No one knows anything about Mr. Struthers’ schedule obviously because he hasn’t been a part of these discussions. So, I’m not undertaking that this trial is going to proceed in January of 2017 until I know who the counsel are who are involved and whether they are all available. That’s all I can tell you that point: March 23, 2016 transcript, p. 4, lines 19-27.

[45] The pre-trial was adjourned to April 27, 2016.

[46] On April 27, 2016, defense counsel again reiterated they were anxious to set trial dates. The Crown advised the decision regarding the direct indictment was still pending. Addressing the Crown, the Court expressed concern at the delay in the following exchange:

The Court: …I know, Mr. Tait, you’re aware that I really am concerned that we’re moving further and further along…

Mr. Tait: Yes, yes.

The Court: …without an answer and I appreciate it’s out of your hands, but at a certain point if I don’t have an answer by May 11th or a firm date on which an answer will be provided, I’m going to require that the Deputy Attorney General attend in person and it won’t be a matter for discussion…I don’t say that lightly but this matter…has been in the Superior Court since January 27th and we are at the end of April: April 27, 2016 transcript, p. 4, lines 21-32; p. 5, lines 1-8.

[47] In adjourning the pre-trial to May 11, 2016, the court also observed that to schedule trial dates, the legal aid funding status for the pending certiorari application also had to be determined:

The Court: Then in terms of the application, for notices of application, is there any further word on that?

Lafitte [agent for Jansen’s counsel]: Still no update with Legal Aid, sorry, Your Honour.

The Court: So, similarly, we really need to know from Legal Aid what’s happening because if there are now going to be certiorari applications, that impacts on my ability to properly schedule trial dates as well.

Lafitte: I understand: April 27, 2016 transcript, p. 5, lines 23-32; p. 6, line 1.

[48] At the May 11, 2016 pre-trial, the court was advised that on May 10, 2016, the Attorney General had approved the direct indictment. Although defence counsel for Jansen and Hall were anxious to set pre-trial dates, the court declined to do so for two reasons:

1. counsel for Dadollahi-Sarab’s did not attend, because legal aid funding had not been finalized; and
2. although the defence had been advised that their appeal to fund the certiorari applications had been dismissed, counsel wanted an opportunity to determine whether the applications could be privately funded.

[49] In court, the following exchange took place:

The Court: And the certiorari, Ms. Lafitte?

Lafitte: Yes, Your Honour, so we did yesterday we received an update from Legal Aid that the appeal has been refused. We haven’t received the reasons yet. They just send it to us - to our office yesterday by mail. We would still like to - we don’t want to abandon the application…at this point in time. We could speak to Mr. Jansen just in terms of retaining us privately to conduct a certiorari given that we just received the denial yesterday, so will do that in the interim between this date and the next.

The Court: All right. So, the two certiorari applications, I’ll put to May 24th to be spoken to.

[50] All matters were adjourned to the May 24 date to be spoken to.

[51] At the May 24 pre-trial, an agent for Dadollahi-Sarab attended, but counsel for both Jansen and Hall did not attend due to a scheduling error by the court office. The pre-trial was adjourned to June 13, 2016. At the June 13, 2016 pre-trial, Jansen and Hall’s counsel abandoned their certiorari applications. Trial issues were discussed which required further review. The matter was adjourned until July 21, 2016.

[52] On July 21, 2016, pre-trial dates were fixed for motions returnable March 20, 2017 for two weeks. Trial dates were fixed commencing April 10, 2017 through May 26, 2017 (seven weeks).

[53] Ultimately, the notice of application for certiorari was withdrawn for lack of legal aid funding. The grounds of the proposed application seeking to set aside committals to first degree murder and attempted murder with committal on second degree murder and aggravated assault were never argued. Thus, this court is unable to determine the legitimacy of the application, a factor in determining whether the delay caused was or was not attributable to the defence. The absence of this evidence leads me infer that the application was frivolous. I cannot find, however, that the application was deliberate or calculated to cause delay.

[54] Until the notice of application for certiorari was withdrawn on June 13, 2016, the Court was not in a position to schedule pre-trial motion and trial dates. The Crown had advised the Court one month earlier, on May 11, 2016, that the preferred indictment had been approved, and it was in a position to set trial dates.

[55] In R. v. Cornacchia, the Ontario Court of Appeal considered whether the trial judge had erred in finding the appellant’s s. 11 (b) rights had not been violated. After being ordered to stand trial, the appellant brought a motion to quash the committal on August 17, 1990. The certiorari motion was abandoned on January 10, 1991. In considering the delay, court observed in para. 10, “The appellant cannot complain of delay during the time his motion to quash was outstanding.”

[56] I find Jansen caused the delay from May 9-June 13, 2016. During that time, the Crown and court were waiting on the status of the certiorari application. As a result, the period of delay is reduced to 36 months. This delay exceeds the presumptive ceiling of 30 months.

[57] At this stage, I make the following observation. In providing a new framework for analysis of unreasonable delay, Jordan identified the court’s concern regarding “a culture of complacency within the system towards delay”: at para. 4. All stakeholders are captured by that comment. The Attorney General’s review process for approval of preferred indictments is undoubtedly thorough and robust given the extraordinary nature of the order. However, in applying the Jordan guidelines, a future review as lengthy as five months absent explanation may be found to be symptomatic of a continued “a culture of complacency,” a situation noted in Jordan to be unacceptable to both the courts and the community at large.

Exceptional Circumstances

[58] Since the net delay of 36 months exceeds the presumptive ceiling of 30 months, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances that led to the delay. Exceptional circumstances are matters that fall outside control of the Crown. These include circumstances that were reasonably unforeseen or reasonably unavoidable and which the Crown would not be able to remedy. Jordan identified discrete events and particularly complex cases as being exceptional circumstances: at paras. 69, 71, 75.

Complex cases

[59] Jordan held complex cases to be those that “…because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified.” Amongst other things, the hallmarks of a complex case include voluminous disclosure, the number of witnesses, and proceeding jointly against multiple co-accused so long as it is in the interests of justice to do so: at para. 77.

[60] Four factors identified in Jordan as hallmarks of a complex case are present in this application. I intend to deal with them individually.

Voluminous Disclosure

[61] Exhibit 1, an Agreed Statement by the Crown and defence, sets out the disclosure provided in the Ontario Court of Justice both prior to and after Dadollahi-Sarab’s arrest on July 15, 2015.

[62] Prior to Dadollahi-Sarab’s arrest, the following disclosure was provided:

• 3,700 pages
• 27 video statements
• 23 audio statements
• 35 video files
• 912 pictures

[63] The above materials included:

• Occurrence reports – 592 pages
• Call History/911 records – 36 pages
• EMS reports – 29 pages
• Civilian witnesses – 45 witnesses (27 videos, 23 audio)
• Police witness notes – 92 officers (1209 pages)
• Chronologies – 9 pages
• Phone records/production orders in relation to:
  • Jansen – 220 pages
  • Hall – 39 pages
  • Related party, Rob Patry – 109 pages
  • Related party, Heather Downes – 583 pages
• In car videos – 9 Ffiles
• Private video surveillance – 26 files
• Exhibit logs/seizure reports – 64 pages
• CFS files and submission – 204 pages
• Post-mortem documents/photos – (46 pages/104 photographs)
• Health records of the alleged victims Palmer and Roseborough – 166 pages
• Warrants, ITO, JO, authorizations
• Arrest warrant for Jansen – warrant in1st, wallet, DNA – 44 pages
• Search warrant 1-65 Holland Street – 36 pages
• Search warrant for a Ford escape (which turned out to be unrelated) – 30 pages
• Press releases – 18
• Canvas plans/documents – 77 pages
• MTO vehicle inquiries – 320 pages
• Photographs – 912 pictures

[64] Following Dadollahi-Sarab’s arrest, the following disclosure was provided:

• 2,417 pages
• 1,281 pages of transcribed pertinent calls
• 21,932 pages of non-pertinent calls
• 7 video statements
• 16 audio statements
• 3 video files
• 303 pictures

[65] This material included:

• Police notes – 36 officers (906 pages)
• Civilian statements – 24 witnesses (7 videos, 16 audio)
• 1 surveillance video
• 2 police station videos
• Exhibit logs / Seizure reports re- Infinity – 19 pages
• 1 CFS submission
• Warrants/ITO, judicial authorizations in relation to 3 telephones. Those materials included:
  • Tracking orders – 34 pages
  • Production orders – 66 pages
  • Warrants – 52 pages
  • Arrest warrant – 9 pages
• Part IV authorizations – 7 pages (interceptions of 9 telephone lines and 4 listening probes for a duration of 28 days)
• Surveillance reports/photos – 151 photographs
• Profile sheet for 4 civilians – 8 pages
• MTO documents – 6 pages
• Wire daily reports – 49 shift reports with 108 pages
• Monitor notes (transcripts) for pertinent calls (1281 pages)
• Monitor notes for non-pertinent calls 21,932 pages – these were provided at the specific request of defense counsel
• Other photos – 199 pages

The Number of Witnesses

[66] For the purposes of committal on first degree murder and attempted murder, the Crown called 32 witnesses over 27 days at the preliminary hearing. The committal was vigorously challenged. The Crown submits it expects no fewer prosecution witnesses to be called at trial.

Proceeding Jointly against Multiple Co-Accused

[67] The prosecution of joint accused contributes to the complexity of a trial. I have already found that the exercise of the Crown’s discretion in preferring and indictment and proceeding jointly on multiple first degree murder and attempted murder charges against Jansen and Dadollahi-Sarab is in the interests of justice. The third accused, Hall, is not charged with murder but with being an accessory after the fact. All counsel agreed she too be joined in the present indictment.

The Nature of the Issues

[68] Jordan holds that “[a] typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance”: at para. 78. Jansen submits the present matter is a “typical murder trial.” The evidence arises from several civilian witnesses who observed the altercation. The central trial issue is the credibility of the complainant’s version of the event as it relates to the question of intent prior to and during the course of the fight. Therefore, the level of complexity is not such that the presumption of unreasonable delay can be rebutted by the Crown.

[69] The trial issues identified by the Crown are more complex than those submitted by Jansen. Those issues include:

• Proof of the identity of the fourth male in the altercation (alleged to be Dadollahi-Sarab);
• Who actually stabbed Palmer and Roseborough, given no witnesses reported seeing a knife;
• Whether Jansen and Dadollahi-Sarab were working in concert and therefore co-perpetrators;
• Whether one was a perpetrator and the other is liable as a result of aiding and abetting; and
• Whether one was a perpetrator and the other is liable as a result of a common purpose.

[70] Jordan holds at para. 80, “[w]here the trial judge finds that the case was particularly complex such that the time the case is taken is justified, the delay is reasonable and no stay will issue. No further analysis is required.”

[71] The determination of a trial’s complexity falls within the trial judge’s expertise: Jordan, at para. 79. In R. v. Picard, 2016 ONSC 7061, 2016 CarswellOnt 18062, while applying the Jordan framework to an application for stay of proceedings, the court found the matter to be a typical murder trial despite the case involving:

• 30,000 pages of disclosure;
• 2,800 photographs;
• Dozens of video recorded witness statements;
• 6800 pages of cell phone records;
• 25,000 text messages with content;
• 103,000 lines in Excel of subscriber records from the accused’s phone;
• 78 witnesses interviewed;
• 60 judicial authorizations;
• Eight separate areas of expert evidence.

[72] Parfett J. held that disclosure by itself, does not indicate a complex case. She found many of the listed witnesses would not be called at trial and that only a fraction of the text messages and photos would be introduced into evidence. The cell phone records, judicial authorizations and expert evidence would not be disputed. Legal issues were not novel or complicated. There was one accused and one charge. There was no wiretap evidence.

[73] In the present matter, the volume of disclosure, the number of witnesses for trial, the number of judicial authorizations and interceptions amongst other things are similar to those in Picard. However, except for being advised that the Crown expected to call the 32 witnesses, the Crown did not make submissions regarding any evidentiary admissions or matters not in dispute that would impact on the trial proceedings.

[74] Although I do not find the present matter to be a typical murder case, as Jansen contends, I also do not find it is “particularly complex”—a necessary finding, as set out in Jordan, that rebuts the presumption of unreasonable delay. At best, I find the trial issues in this matter to be moderately complex.

Discrete and Unexpected Events

[75] The Crown submits that the application for certiorari on December 22, 2015 (recall, it was abandoned on June 13, 2016) is an exceptional circumstance that should be deducted.

[76] This court has already attributed delays associated with the certiorari application to the defence. If I am in error in that finding, the reasons provided in that analysis, are equally applicable to the Crown’s position that the delay caused by filing the notice of certiorari application is an exceptional circumstance and that the period of delay be deducted. In either circumstance the period of delay is reduced to 31 months and eight days.

[77] I have also considered the Crown’s submission that the period of delay is further reduced by two unanticipated events that arose during the joint preliminary hearing for Jansen and Hall. Despite Hall’s earlier instructions on August 7, 2014, the voluntariness of her post-arrest statements was not an issue; her position changed. Voluntariness was not admitted, requiring additional evidence from police officers and submissions as to admissibility. That added one day to the completion of the preliminary hearing.

[78] Additionally, a Crown witness testified at the preliminary hearing she could not remember a number of events she disclosed in her audio statement regarding post offense contact she had with Hall. This prompted the Crown to make an unanticipated application pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 and ultimately a KGB application to introduce the statement. In totality, this discrete event added five additional days to the preliminary hearing.

[79] The death of the Director of the Crown Operation’s father was an additional discrete and exceptional event. The Director could not review the request for a direct indictment for three weeks starting January 15, 2017. As such, three weeks should be deducted from the net delay.

[80] These two events discrete and unanticipated totalling three weeks and six days are deducted leaving a net delay of roughly 35 months. This period of delay exceeds the 30-month presumptive ceiling. Given that this is a transitional case, the next step is to determine whether there are exceptional transitional circumstances that will justify the delay in this case.

Transitional exception

[81] Jansen was charged prior to July 8, 2016, the release date of Jordan. Jordan provided that a transitional exception would apply to cases already in the system. In those cases, where the delay exceeds the presumptive ceiling, the Crown may satisfy a court that the time taken is justified based on the parties’ reasonable reliance on the law as set out previously in R. v. Morin.

[82] Jordan further directed that the court apply a contextual and flexible assessment having regard to “the fact that the parties’ behavior cannot be judged strictly, against a standard of which they had no notice”: at para. 96.

[83] In R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 26-30, the contextual analysis to be applied in transitional cases is governed by the following factors:

• Complexity of the case;
• The period of delay in excess of the Morin guidelines;
• The Crown’s response if any to any institutional delay;
• Defence efforts, if any to move the case along; and
• Prejudice to the accused.

[84] In Morin, the court established that institutional delay in the range of 8 to 10 months in the provincial court and 6 to 8 months between committal and the start of the trial in Superior Court constituted an acceptable allowance for limits on institutional resources: at para. 50.

[85] i.

[86] The delay in the Ontario Court of Justice minus any inherent time requirements, institutional delay, and defense delay was 21 months and 19 days. This is the period of time from when the information was sworn on February 13, 2014 to the date of committal on December 2, 2015.

[87] Jansen submits the 15 months from his arrest on February 19, 2014 to the start of the preliminary hearing on June 1, 2015 exceed the inherent time requirements to prepare and process this matter. He submits the Crown failed to move the matter ahead expeditiously and minimize delay by providing timely disclosure. Numerous judicial pre-trials were held to address outstanding disclosure issues. In order to avoid additional delay, a preliminary inquiry date was set prior to obtaining full disclosure. As such, the delay should not be found to be neutral time and should be attributed to the Crown.

[88] For the following reasons, I find no merit in Jansen’s position.

[89] Inherent time requirements cover the period required for the Crown and defence to prepare and process a case. In terms of the s. 11 (b) reasonableness assessment, these inherent time requirements are neutral and do not count against the Crown or the accused.

[90] Jansen’s first court appearance was February 20, 2014. Disclosure was sought by the defence. On April 2, 2014, the Crown provided what it termed initial disclosure comprising of summaries of witness statements and police notes.

[91] On May 16, 2014, further disclosure was provided – statements from 19 civilian witnesses and notes from 42 police officers.

[92] In the three months from Jansen’s arrest, disclosure remained a live issue in a number of pre-trial conferences held in the Ontario Court of Justice. Although disclosure was incomplete on June 17, 2014, 20 days were fixed for a preliminary hearing to commence June 1, 2015, approximately one year later.

[93] The Crown and defence agreed that a further judicial pre-trial be set for September 29, 2014 to address ongoing disclosure issues. The September 29 pre-trial was later cancelled, because the presiding justice seized with the matter was unavailable. A new date was set for October 21, 2014.

[94] On October 21, 2014, significant disclosure remained outstanding. The court adjourned the matter for further pre-trial on February 3, 2015 to review the outstanding disclosure issues.

[95] On or about November 27, 2014, the Crown provided counsel a list of 32 witnesses it intended to call for the preliminary hearing and advised it would be seeking a committal to first degree murder.

[96] On February 2, 2015, the defense and Crown agreed that the February 3, 2015 pre-trial to review outstanding disclosure was to be canceled. Both agreed there was no need for further pre-trials and that the matter be adjourned directly to the preliminary hearing date of June 1, 2015. Regarding outstanding disclosure and trial issues, defense counsel sent the following email to the Crown:

I don’t really have much need for another judicial pre-trial. We can’t narrow the issues or witnesses given the circumstances of the case and I think we are working well on the disclosure front. I’m still waiting on the ITOs and you will let me know what experts you intend to call: Respondent’s application record, tab 3, at p. 33.

[97] As previously reviewed, the disclosure in this matter was extensive. It was provided to the defence as it became available. Although the timing of disclosure was a live issue canvassed in a number of judicial pre-trials, Jansen’s counsel’s e-mail to the Crown four months prior to the preliminary hearing is inconsistent with his contention that the Crown failed to provide timely disclosure and is thus responsible for unreasonable delay in the intake period.

[98] The e-mail is also inconsistent with Jansen’s contention that the Crown caused unreasonable delay during the intake period by failing to streamline pending trial issues. The trial issues were clear and had been identified. Jansen’s counsel’s e-mail to the Crown states, “We can’t narrow the issues or witnesses given the circumstances of this case.” As a result, the scheduled pre-trial to review that issue and disclosure was mutually cancelled by defence counsel and the Crown.

[99] Jansen’s contention that Crown inaction unreasonably extended the intake period is undermined by efforts made by the Crown to seek by concessions and shorten the preliminary hearing. In emails to Jansen’s counsel on May 9 and 25, 2015, the Crown proposed concessions, which included admission of extracted data from a third party’s phone found in Hall’s apartment, continuity of the phone after seizure, identity of the deceased Roseborough at the time of death, Jansen’s and Hall’s identification absent witnesses pointing them out in court, and the need not to call the photographer for introduction of post-mortem photos. On some issues, concessions were made; on others, Jansen remained silent.

[100] I further find that the totality of 21 months and 19 days from the Applicant’s arrest on February 13, 2014, to the completion of the preliminary hearing in the Ontario Court of Justice on December 2, 2015 to be intake, institutional, or inherent delay and not delay caused by Crown inattention or inaction as submitted by the Applicant. In accordance with the Morin guidelines, this delay, for the most part, is neutral in determining the reasonableness of the delay.

[101] The approximate four months of intake from February 3, 2014 (first appearance) to June 17, 2014 (preliminary hearing dates set) is neutral. Disclosure and trial issues reviewed at continuing judicial pre-trials.

[102] The almost four months between setting the preliminary hearing dates and the last judicial pretrial on October 21, 2014 is inherent delay and neutral. Disclosure continued to be provided with further review at judicial pre-trials. Given the voluminous disclosure, I find the eight months of delay from February 3, 2014 to October 21, 2014, at first blush, to be problematic but in this instance, within acceptable timelines as provided in Morin.

[103] The two months between October 21, 2014 and December 21, 2014, is the inherent time requirement for the Crown and defense to prepare for a then estimated preliminary hearing of six months.

[104] The 27 days for completion of the preliminary hearing is neutral. Prior to completion of evidence at the preliminary hearing on November 5, 2015, as previously reviewed, the defense expressly waived delay for two months and 15 days from July 3, 2015 through September 18, 2015. This delay period is neutral. Additionally, the one-month period from completion of evidence at the preliminary hearing, to the return date of December 2, 2015, when applicant was committed to stand trial is neutral, it being inherent delay.

[105] In summary, in the Ontario Court of Justice, 21 months and 19 days elapsed from the applicant’s arrest to committal to stand trial. This period reflected 9 months and 17 days of inherent delay, 4 months and 4 days of intake, 5 months and11 days of institutional delay, and 2 months and 15 days of defense waiver. Having found these periods to be neutral, the amount of institutional delay in the Ontario Court of Justice is approximately 5 months and 11 days. This is well within the Morin guidelines of 8 to 10 months.

[106] The delay in the Superior Court of Justice minus any inherent requirements, institutional delay, and defence delay is 17 months and 24 days. This is the period from the date of committal December 2, 2015 to the anticipated end of the trial May 26, 2017.

[107] I find the period just over two months from Jansen’s committal to stand trial to February 10, 2016 the first judicial pre-trial in which the case was addressed to be an intake period and neutral under the Morin guidelines. In those two months, the defence and filed the notice of certiorari application and the Crown had sought approval of to a preferred indictment against Dadollahi-Sarab.

[108] As already reviewed, from February 10, 2016 to the pretrial on May 11, 2016 (approximately three months), Jansen’s certiorari application and the Crown’s request for a preferred indictment remained outstanding. As such, both parties were no position to set a trial date. In applying the Morin guidelines, I find these three months to be neutral.

[109] Two judicial pre-trials were held between May 11, 2016 and June 13, 2016. The applicant abandoned the certiorari application on June 13, 2016. I find this period of one month to be attributable to action of the defence or “intake” both of which are neutral. The pre-trial date was set returnable July 21, 2016. On that date pre-trial motions were fixed returnable March 20, 2017, and the trial to commence April 10, 2017 through May 26, 2017.

[110] Given the complexity of the trial involving two co-accused charged with first-degree murder and attempted murder and a third party charged with accessory after the fact, reasonable preparation time for all counsel is no less than three months; this period being neutral. (July through October 2016).

[111] Thereafter, I would ascribe five months of institutional delay from October 2016 to March 20, 2017, the start date of the pre-trial motions. The motions were expected to require two to three weeks and be completed by April 7, 2007. This three-week period is neutral being inherent delay. Similarly, the forecasted seven-week trial scheduled to start April 10, 2017 and be completed by May 26, 2017 is neutral, being inherent delay.

[112] In the Superior Court of Justice, I ascribe 2 months and 21 days to be neutral time in which both Jansen’s certiorari application and the Crown’s request for approval of a preferred indictment remained unresolved. The intake period is calculated to be one month and eight days, the inherent delay (preparation time) estimated to be two to three months. The institutional delay is therefore approximately five to six months, within the Morin guidelines of six to eight months.

[113] In totality, the institutional delay in the Ontario Court of Justice (five months) and institutional delay in the Superior Court of Justice (five to six months) is 11 to 12 months, again within the Morin guidelines. This calculation has factored inherent periods of delay in providing voluminous Crown disclosure, numerous pre-trial attendances, and trial preparation for a case of moderate and not simple complexity as submitted by the applicant. The approximate three months when both Jansen’s certiorari application and the Crown’s request for a preferred indictment remained unresolved was also a significant factor.

[114] However, the “contextual assessment” in Jordan in transitional cases includes more than mathematical calculation of intake, preparation, and trial time. It includes how the previous framework under Morin would have been applied in relation to the seriousness of the offense.

[115] The decision in Jordan was issued in the midst of the applicants’ preliminary hearing in July 2016. There was no time to adapt to the new Jordan guidelines. This is a serious matter involving two co-accused charged with murder and attempted murder and a third party charged with being an accessory after the fact. There is a societal interest in a trial on the merits. Throughout I find the Crown’s reliance on the Morin framework to be reasonable.

[116] I make this finding recognizing that Jansen has been in custody since his arrest in February 2014. Jansen submits he has suffered both inferred and actual prejudice, which weighs heavily in support of a stay of proceedings when applying the Morin guidelines in a transitional case.

[117] Regarding inferred prejudice, Jansen cites the stress and anxiety of the ongoing proceedings, the uncertainty of the result, and the stigma of being subject to the court process. With respect to actual prejudice, the applicant cites his inability to maintain close family relationships, living in harsh pretrial detention conditions, and significant difficulties in preparing his case for trial.

[118] Despite the prejudice submitted, in the three years plus of detention, no application has been brought for bail release.

[119] For the aforementioned reasons, I find the Crown has satisfied the court that the net time for this case is justified based on the parties reasonable reliance on the law as it previously existed. The transitional exception is applicable in this matter and Jansen’s s. 11 (b) application to stay the proceedings is dismissed.

Analyzing Hall’s Application

Hall’s procedural history

[120] Hall was arrested and charged with being an accessory after the fact to murder on February 19, 2012. From her first appearance in the Ontario Court of Justice on February 20, 2014 through March 10, 2014, Hall remained in custody without bail. On March 17, 2014, on consent she was released on a recognizance with sureties.

[121] On April 22, 2014, the Crown proposed a possible resolution of the charge of accessory after the fact to murder. From that date through June 6, 2014, in three court appearances, Hall’s counsel did not respond to the proposed resolution but advised in an email to the Crown on May 12, 2014 and in a court appearance on May 14, 2014, that the delay was not an issue. During the same period, Crown had not completed its disclosure.

[122] In the next judicial pre-trial held on June 20, 2014, Hall rejected the Crown’s proposal. Hall’s counsel also agreed that, for the purposes of disclosure, the only information sought was “post-stabbing” disclosure, namely:

• What Hall may have known or done in harboring Jansen,
• Interviews with civilians (during the search for Jansen),
• The officer’s notes during the search for Jansen, and
• Press releases.

[123] The information was to be provided by July 16, 2014, the next scheduled judicial pre-trial. Disclosure for Hall’s matter was completed by that date. A further judicial pre-trial was scheduled for August 7, 2014.

[124] On August 7, 2014, a preliminary hearing for Hall’s charge was set returnable May 4-7, 11-13, 2015. It was scheduled for seven days on the understanding that:

• The fact that a murder had occurred was not an issue; and
• That a voir dire was not required for any post-arrest statements made by Hall.

[125] On February 1, 2015, Hall’s counsel advised that her instructions had changed. The fact that a murder had occurred was not admitted for the purposes of the preliminary hearing. The Crown and Hall’s counsel agreed that the seven days for the preliminary hearing were now inadequate.

[126] Given that a murder had occurred was at issue with the same witnesses to be called in both Hall’s and Jansen’s preliminary hearings, the Crown and defence for Jansen and Hall agreed that a joint preliminary hearing involving Jansen and Hall would commence on June 1, 2015, the date already set for Jansen’s hearing. Hall’s earlier preliminary hearing dates were vacated.

[127] The joint preliminary hearing began June 1, 2015. During the preliminary hearing, Hall’s instructions changed further in that she was not admitting the voluntariness of her post-arrest utterances. Two police witnesses were called over three days to satisfy the voluntariness criteria.

[128] Hall was committed to stand trial on the charge of accessory after the fact to murder on December 2, 2015, the same day as Jansen’s committal to stand trial. Thereafter, Hall’s appearances in Superior Court mirrored those of Jansen’s.

[129] On December 22, 2015, both Hall and Jansen served notices of application for certiorari to quash the orders of committal.

[130] On June 13, 2016, Hall withdrew her application for certiorari. On July 21, 2016, the trial dates were confirmed for both Hall and Jansen: March 20, 2017 pre-trial motions for two weeks and then a seven-week trial by jury starting April 10, 2017.

Analysis

[131] I find the delay in this matter is below the presumptive ceiling of 30 months. I further find Hall has not discharged her onus of proving that the delay is unreasonable.

[132] The total delay from the date the information was sworn on February 20, 2014 to the anticipated completion of Hall’s jury trial is 39 months and 6 days.

[133] Delay which is caused solely by the conduct of the defence is subtracted from the total delay.

[134] I find Hall caused a delay of approximately six months. She filed a notice of application for certiorari on December 22, 2015 and withdrew it on June 13, 2016. I would categorize this as defence delay even though the Crown was seeking approval for a preferred indictment during this time. Given that the merits of the application were never set out or argued and given that Legal Aid refused to fund the application, the absence of any other evidence leads me to draw an inference that the application was frivolous. I cannot find, however, that the application was deliberate or calculated to cause delay. Consequently, the net delay is 33 months and 15 days.

[135] I also find Hall implicitly waived approximately six months when she changed her instructions regarding her preliminary hearing. On August 7, 2014, her preliminary hearing was initially scheduled for seven days, starting May 4, 2015. Hall had conceded that a murder had taken place at that time. She later advised, on February 1, 2015, that it was a matter to be proven for committal on her charge of accessory after the fact—the seven days were no longer sufficient.

[136] The issue then became common for both Hall’s and Jansen’s hearings, so Hall agreed to join her offence to Jansen’s preliminary hearing, which was scheduled to start on June 1, 2015. The joint preliminary hearing required 27 days to present evidence. The preliminary hearing was adjourned on consent for 2.5 months in July.

[137] The preliminary hearing was eventually completed on November 5, 2015. Hall was committed to stand trial on December 2, 2015.

[138] Hall argues that any delay that may have resulted because of her change in instructions regarding the scope of the preliminary hearing not be deducted, because this would punish her for insisting on her rights in their fullest. The Crown, after all, bears the evidential burden of proving its case.

[139] I find the question is not whether Hall was entitled to insist on the Crown meeting its evidential burden for committal, but whether Hall’s conduct caused or directly contributed to the delay. Her change in instructions enlarged the scope of the preliminary hearing, increased the time required for the completion of evidence and delayed the date of committal to December 2015.

[140] Hall further submits that even if her initial preliminary hearing had been completed in May, and she was committed to trial, her trial would remain in” abeyance until the completion of the Jansen matter.

[141] Hall’s second submission is conjecture at best. What might have happened had the Applicant followed through with a single issue focused preliminary hearing standing alone, is speculative and cannot be quantified in any meaningful way. Consequently, it has no bearing of this Court’s assessment of the actual delay.

[142] As such, Hall implicitly waived the time between May 13, 2015 (the day her preliminary hearing was initially anticipated to conclude) to November 5, 2015 (the day her joint preliminary hearing concluded). This reduces the net delay in Hall’s case to approximately 27.5 months.

[143] Hall has not demonstrated that the net delay is otherwise unreasonable. Accordingly, her application to stay proceedings pursuant to s. 11(b) of the Charter is dismissed.

Sosna J.

Released: May 15, 2017